THE REPORT FROM WASHINGTON

Stop accepting progressive premises! Part 2

Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of John Marshall Law School and post-grad work at Harvard Law School, his latest law review article is titled, "Social Darwinism in Nazi Family and Inheritance Law." Washington’s latest book is a 2-volume collection of essays and Socratic dialogues – "The Progressive Revolution" (University Press of America, 2013). Visit his popular law/political blog, "EllisWashingtonReport.com, an essential repository dedicated to educating the next generation of young conservative intellectuals.

In any compromise between food and poison, it is only death that can win. In any compromise between good and evil, it is only evil that can profit. In that transfusion of blood which drains the good to feed the evil, the compromiser is the transmitting rubber tube.

– Ayn Rand

This is Part 2 of my series on the historical folly America has suffered and continues to suffer by continually accepting as legitimate progressives premises on law, public policy and society which are 100 percent unconstitutional. This article concerns a two-part law review article I’m writing on the historical background the progressive movement and its creation of the juvenile justice system. The second part will be published later this year.

Juvenile law is one of the foundational pillars of the progressive movement (1880s to present) for it contains all of the elements so dear to utopian socialists:

1) Progressives under the guise of “protecting” children from the horrors of prison with adults, have corrupted children wholesale at an early age by integrating them into this pseudo-constitutional “juvenile justice system”;

2) Progressives systematically perverted the Constitution by creating an entirely extra-constitutional system (juvenile law) out of whole cloth;

3) Progressives then paved the way judicially to achieve even more utopian socialist schemes (abolition of teenage labor, government control of free market, unionism, minimum wage, etc.) while bypassing Congress and the constitutional process through the liberal fire wall of progressive activist judges.

Judge Andrew Napolitano wrote in his exceptional 2006 book, “The Constitution in Exile,” that the early 1900s marked a pivotal constitutional crisis in America as 25 years of progressive movement policies created largely in the halls of the academy increasingly pushed the Supreme Court to finally stem the tide of this radical deconstruction of America. Napolitano wrote, “Resolved to uphold the original intent of the constitutional Framers as well as an uncompromising adherence to Natural Law, the Supreme Court evidently interpreted the protection of the freedom to contract as a God-given, natural right. Like the transcendent promises contained in Jefferson’s Declaration of Independence, this freedom was both self-evident and unalienable (absolute).”

Thus when the Court ruled in the Lochner case, it fully delineated the 1905 doctrine of liberty of contract which came to define a new age – the Lochner Era. In Lochner, the Supreme Court ruled unconstitutional a New York state law that limited the number of hours a baker could work.

New York’s minimum work hour’s law begs the question which Lochner brilliantly resolves. What will prevent socialist politicians from being satisfied merely regulating baker’s hours to 60 hours per week in New York? Nothing. But for the restraining hand of Lochner 105 years ago, busy body bureaucrats would’ve been regulating the hours of everyone in every conceivable business relationship under the pretext of interstate commerce and protecting the general welfare. You can just imagine the economic chaos this type of Fabian socialism would have aggravated during America’s greatest period of economic growth, the so-called “roaring twenties”?

Justice Peckham would have none of this utopian socialism and wrote with force and authority that, “the act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts.” Peckham deemed that these “watching out for you” regulations are all patently unconstitutional because they are onerous restrictions on one’s vocation. The government must never treat a free and intelligent people like an overprotective parent because this leads to the people becoming too dependent upon the government rather than their own abilities.

Justice Peckham further explains this view stating, “statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of a police power. …”

Because the Lochner decision so overtly upheld Natural Law jurisprudence, this case rightly remains one of the most significant and regularly cited cases in the history of the Supreme Court. Lochner has served as the beacon of truth against the perpetual ideological battles between the free market Natural Law originalists (Justices Thomas, Scalia, Roberts, Alito) and the New Deal regulatory state positivists (Justices Ginsburg, Breyer, Sotomayor, Kagan, and sometimes Kennedy) which still are fought to this day.

Lochner notwithstanding, the creation of the juvenile justice system in 1899 was a shining example of Fabian socialism (gradualism) where progressive politicians (Republicans and Democrats) became masters of exploiting laws under the pretense of “helping people” not because they loved the people, but in a Machiavellian sense to guarantee a perpetually dependent class of people who lazily vote themselves largess out of the federal treasury. Today we call this kind of politics earmarks, payola and pork projects.

Progressives and the Democratic Party were simply the side who won when they successfully implemented juvenile law statutes in all 50 states by 1925 without even a pretense of constitutional legitimacy because the progressive reformers, academics and the liberal media shamelessly used the idea of protecting the welfare of the children to cover up their unconstitutional schemes.

As it was in the 1880s, 1930s and 1960s, the midterm elections held this week clearly encapsulate how liberal Democrats and progressives have united to make the state “god” over every aspect of our lives (despite historical losses in Congress) while rendering the God of the Constitution as either dead or irrelevant. Therefore, America, we must stop accepting progressive premises for as Ayn Rand rightly said, “In any compromise between food and poison, it is only death that can win.”

Thank goodness that President Obama’s plan to “remake America” by destroying it will be prevented now that the Republicans control the House.